HEARING COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES

Transcription

1 RISE OF THE DRONES II: EXAMINING THE LEGALITY OF UNMANNED TARGETING HEARING BEFORE THE SUBCOMMITTEE ON NATIONAL SECURITY AND FOREIGN AFFAIRS OF THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION APRIL 28, 2010 Serial No Printed for the use of the Committee on Oversight and Government Reform ( Available via the World Wide Web: U.S. GOVERNMENT PRINTING OFFICE WASHINGTON PDF : 2011 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) ; DC area (202) Fax: (202) Mail: Stop IDCC, Washington, DC VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 5011 Sfmt 5011 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

2 COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM PAUL E. KANJORSKI, Pennsylvania CAROLYN B. MALONEY, New York ELIJAH E. CUMMINGS, Maryland DENNIS J. KUCINICH, Ohio JOHN F. TIERNEY, Massachusetts WM. LACY CLAY, Missouri DIANE E. WATSON, California STEPHEN F. LYNCH, Massachusetts JIM COOPER, Tennessee GERALD E. CONNOLLY, Virginia MIKE QUIGLEY, Illinois MARCY KAPTUR, Ohio ELEANOR HOLMES NORTON, District of Columbia PATRICK J. KENNEDY, Rhode Island DANNY K. DAVIS, Illinois CHRIS VAN HOLLEN, Maryland HENRY CUELLAR, Texas PAUL W. HODES, New Hampshire CHRISTOPHER S. MURPHY, Connecticut PETER WELCH, Vermont BILL FOSTER, Illinois JACKIE SPEIER, California STEVE DRIEHAUS, Ohio JUDY CHU, California EDOLPHUS TOWNS, New York, Chairman DARRELL E. ISSA, California DAN BURTON, Indiana JOHN L. MICA, Florida MARK E. SOUDER, Indiana JOHN J. DUNCAN, JR., Tennessee MICHAEL R. TURNER, Ohio LYNN A. WESTMORELAND, Georgia PATRICK T. MCHENRY, North Carolina BRIAN P. BILBRAY, California JIM JORDAN, Ohio JEFF FLAKE, Arizona JEFF FORTENBERRY, Nebraska JASON CHAFFETZ, Utah AARON SCHOCK, Illinois BLAINE LUETKEMEYER, Missouri ANH JOSEPH CAO, Louisiana RON STROMAN, Staff Director MICHAEL MCCARTHY, Deputy Staff Director CARLA HULTBERG, Chief Clerk LARRY BRADY, Minority Staff Director SUBCOMMITTEE ON NATIONAL SECURITY AND FOREIGN AFFAIRS CAROLYN B. MALONEY, New York PATRICK J. KENNEDY, Rhode Island CHRIS VAN HOLLEN, Maryland PAUL W. HODES, New Hampshire CHRISTOPHER S. MURPHY, Connecticut PETER WELCH, Vermont BILL FOSTER, Illinois STEVE DRIEHAUS, Ohio STEPHEN F. LYNCH, Massachusetts MIKE QUIGLEY, Illinois JUDY CHU, California JOHN F. TIERNEY, Massachusetts, Chairman ANDREW WRIGHT, Staff Director JEFF FLAKE, Arizona DAN BURTON, Indiana JOHN L. MICA, Florida JOHN J. DUNCAN, JR., Tennessee MICHAEL R. TURNER, Ohio LYNN A. WESTMORELAND, Georgia PATRICK T. MCHENRY, North Carolina JIM JORDAN, Ohio JEFF FORTENBERRY, Nebraska BLAINE LUETKEMEYER, Missouri (II) VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 5904 Sfmt 5904 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

3 C O N T E N T S Page Hearing held on April 28, Statement of: Anderson, Kenneth, professor of law, Washington College of Law, American University, member, Hoover Task Force on National Security and Law, the Hoover Institution, Stanford University; Mary Ellen O Connell, Robert and Marion Short professor of law, Notre Dame University; David Glazier, professor of law, Loyola Law School; William C. Banks, director, Institute for National Security and Counterterrorism, Syracuse University, Board of Advisers Distinguished professor of law and professor, Public Administration, Maxwell School of Citizenship and Public Affairs... 7 Anderson, Kenneth... 7 Banks, William C Glazier, David O Connell, Mary Ellen Letters, statements, etc., submitted for the record by: Anderson, Kenneth, professor of law, Washington College of Law, American University, member, Hoover Task Force on National Security and Law, the Hoover Institution, Stanford University, prepared statement of... 9 Banks, William C., director, Institute for National Security and Counterterrorism, Syracuse University, Board of Advisers Distinguished professor of law and professor, Public Administration, Maxwell School of Citizenship and Public Affairs, prepared statement of Glazier, David, professor of law, Loyola Law School, prepared statement of O Connell, Mary Ellen, Robert and Marion Short professor of law, Notre Dame University, prepared statement of Tierney, Hon. John F., a Representative in Congress from the State of Massachusetts, prepared statement of... 3 (III) VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 5904 Sfmt 5904 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

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5 RISE OF THE DRONES II: EXAMINING THE LEGALITY OF UNMANNED TARGETING WEDNESDAY, APRIL 28, 2010 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL SECURITY AND FOREIGN AFFAIRS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, DC. The subcommittee met, pursuant to notice, at 10 a.m. in room 2154, Rayburn House Office Building, Hon. John F. Tierney (chairman of the subcommittee) presiding. Present: Representatives Tierney, Welch, Foster, Quigley, Flake, Duncan. Staff present: Andy Wright, staff director; Boris Maguire, clerk; Talia Dubovi, counsel; LaToya King, fellow; Aaron Blacksberg and Bronwen De Sena, interns; Adam Fromm, minority chief clerk and Member liaison; Stephanie Genco, minority press secretary and communication liaison; Tom Alexander, minority senior counsel; Christopher Bright, minority senior professional staff member; and Renee Hayes, minority Brookings fellow. Mr. TIERNEY. A quorum being present, the Subcommittee on National Security and Foreign Affairs hearing entitled, Rise of the Drones II: Examining the Legality of Unmanned Targeting, will come to order. I ask unanimous consent that only the chairman and ranking member of the subcommittee be allowed to make opening statements. Without objection, so ordered. I ask unanimous consent that the hearing record be kept open for five business days, so that all members of the subcommittee will be allowed to submit a written statement for the record. Without objection, so ordered. And I ask unanimous consent that written testimony from the American Civil Liberties Union, Ms. Hina Shamsi and Mr. John Radsan, be submitted for the record. Without objection, so ordered. Good morning again. Today the subcommittee continues its oversight of the use of unmanned weapons systems in the conflict in Afghanistan and around the globe. On March 23rd, the subcommittee held its first hearing on this emerging issue. We heard from a number of experts who testified to the wide array of issues implicated by the use of drones, including operational, political and ethical questions. Today we will take a closer look at one important aspect of drone use: the legality of using unmanned weapons to target individuals who pose a threat to our national security. (1) VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

6 2 When the United States ratified the Geneva Conventions in 1955, the Senate Committee on Foreign Relations characterized the agreements as follows: As a landmark in the struggle to obtain for military and civilian victims of war, a humane treatment in accordance with the most approved international usage. The United States has a proud tradition of support for individual rights, human freedom, and the welfare and dignity of man. Approval of these conventions by the Senate would be fully in conformity with this great tradition. Warfare has changed significantly since the Geneva conventions were written. But the ideals cited by the Senate Committee in 1955 have not. Today we will examine how these laws apply in modern times. The increasing reliance on unmanned weapons to target individuals has been well documented in the press. Over the past decade, the number of unmanned vehicles used by the Department of Defense has gone from a few hundred to several thousand. Drones have been credited with eliminating senior leaders of the Taliban and other insurgent groups. And accounts of the recent addition of an American citizen to the target list have received widespread attention. These reports have raised serious questions about whether targeted killing and drone use comport with the relevant international and domestic laws. The use of unmanned weapons to target individuals, and for that matter, the targeting of individuals in general, raises many complex legal questions. We must examine who can be a legitimate target, where that person can be legally targeted and when the risk of collateral damage is too high. We must ask whether it makes a difference if the military carries out an attack or whether other government entities, such as the Central Intelligence Agency, may legally conduct such attacks. We must ensure that the administration s understanding of the authorities granted to it by Congress do not exceed what Congress intended. We have here today a distinguished panel of legal experts to help answer some of these questions. I understand that you are not going to agree on all of the answers, and probably not going to be able to give us totally all the answers. But we are looking to learning quite a bit from your conversation. On March 25th, the State Department Legal Adviser Harold Koh gave a speech at the annual meeting of the American Society of International Law, in which he affirmed this administration s commitment to following international law. In his words, this is a commitment to following universal standards, not double standards. It is in this context, then, that we turn to our witnesses today, with the understanding that the United States is committed to following international legal standards, and that our interpretation of how these standards apply to the use of unmanned weapons systems will set an example for other nations to follow. I do not expect we will be able to answer any of these complex questions today. But I do hope that this will be the beginning of a conversation, one that this committee will continue with members of the administration, including Legal Adviser Koh. And with that, I defer to Mr. Flake for his opening remarks. [The prepared statement of Hon. John F. Tierney follows:] VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

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9 5 Mr. FLAKE. I thank the chairman, and I thank the witnesses for coming. Since we met last, obviously the administration has gone on record to state that the use of unmanned drones in combat is legal under international law. I look forward to hearing some further clarification. I look forward to hearing from Mr. Anderson. He was here last time as a minority witness, and now he is a majority witness. I hope that the Republicans in Congress follow the same trajectory soon. Inside joke. But anyway, we are glad to have you all here and appreciate your coming and testifying, and for Mr. Anderson coming back. Thanks. Mr. TIERNEY. I could say that it shows that it is not the Senate, we can actually do things and agree. [Laughter.] Let me introduce our witnesses from whom we will be receiving testimony today. First on our panel is Mr. Kenneth Anderson, who was in fact with us at our last hearing. He is a professor at Washington College of Law at American University and a research fellow at Stanford University s Hoover Institution. He is an authority on international human rights, war, armed conflict and terrorism. He testified, as I said, at our first hearing. He has also previously served on the board of directors of America s Watch, the precursor to Human Rights Watch and is the founder and former director of the Human Rights Watch Arms Division. He holds a B.A. from UCLA and a J.D. from Harvard University. Ms. Mary Ellen O Connell is the Robert and Marion Short professor of law at the University of Notre Dame Law School. Ms. O Connell s primary research focuses on international legal regulation of the use of force, as well as conflict and dispute resolution. She is the author of The Power and Purpose of International Law, as well as three case books on international law, and is active in a number of international law organizations, including the American Society of International Law and the Council on Foreign Relations. Ms. O Connell earned her B.A. from Northwestern University and was awarded a Marshall Scholarship for study in Britain where she received a Masters of science in international relations from the London School of Economics and an LLB from Cambridge University. She earned her J.D. from Columbia University. Mr. David Glazier is a professor of law at Loyola Law School in Los Angeles. Prior to joining Loyola Law School, Professor Glazier was a lecturer at the University of Virginia School of Law and a research fellow at the Center for National Security Law, where he conducted research on national security, military justice and the law of war. Before attending law school, Mr. Glazier served 21 years as a surface warfare officer in the U.S. Navy. In that capacity, he commanded the USS George Phillip, served as the Seventh Fleet staff officer responsible for the U.S. Navy-Japan relationship and participated in U.N. sanctions enforcement against Yugoslavia and Haiti. VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

10 6 Mr. Glazier holds a B.A. in history from Amherst College, earned an M.A. from Georgetown University and holds a J.D. from the University of Virginia Law School. Mr. William Banks is the founding director of the Institute for National Security and Counter-Terrorism at Syracuse University, where he is also on the board of advisors, a distinguished professor of law and a professor of public administration in the Maxwell School of Citizenship and Public Affairs. He is recognized internationally as an expert in constitutional law, national security law and counter-terrorism. Mr. Banks authored a leading text in the field in 1990 entitled National Security Law. In 2007, he published a second leading textbook entitled Counterterrorism Law, to help define that emerging field as well. He is also editor and chief of the Journal of National Security Law and Policy. He holds his B.A. from the University of Nebraska and received his J.D. from the University of Denver. So again, we have quite a bit of brainpower being thrust upon us here today, and we do appreciate your taking the time and making yourselves available to share with us that substantial expertise. It is the policy of this subcommittee to swear in our witnesses before they testify, so I ask that you please stand and raise your right hands. [Witnesses sworn.] Mr. TIERNEY. The record will please reflect that all the witnesses have answered in the affirmative. I can tell all of you, and remind Mr. Anderson, that your complete written statement will be in the record by agreement, unanimous consent of the committee. We ask that you try to keep your opening remarks to about 5 minutes if you could. You will see the light is green for the first 4 minutes; amber for the fifth minute, then red when it is about the time we would like you to come to not a screeching halt, but a nice conclusion of your remarks, so that we can have an opportunity to have a colloquy back and forth and ask some questions. So if that is understood, Mr. Anderson, would you please begin with your remarks? VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

11 7 STATEMENTS OF KENNETH ANDERSON, PROFESSOR OF LAW, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY, MEMBER, HOOVER TASK FORCE ON NATIONAL SECURITY AND LAW, THE HOOVER INSTITUTION, STANFORD UNIVER- SITY; MARY ELLEN O CONNELL, ROBERT AND MARION SHORT PROFESSOR OF LAW, NOTRE DAME UNIVERSITY; DAVID GLAZIER, PROFESSOR OF LAW, LOYOLA LAW SCHOOL; WILLIAM C. BANKS, DIRECTOR, INSTITUTE FOR NA- TIONAL SECURITY AND COUNTERTERRORISM, SYRACUSE UNIVERSITY, BOARD OF ADVISERS DISTINGUISHED PROFES- SOR OF LAW AND PROFESSOR, PUBLIC ADMINISTRATION, MAXWELL SCHOOL OF CITIZENSHIP AND PUBLIC AFFAIRS STATEMENT OF KENNETH ANDERSON Mr. ANDERSON. Thank you, Mr. Chairman, and thank you to the committee for having us here today. The last time that this committee held a hearing on this subject, I was a very strong voice of criticism of the administration and its senior lawyers for not having expressed any views as to the legality of the use of drones and targeted killing practices and the whole cluster of issues that we are in fact here to discuss today. I have been a very sharp critic of this, and in fact, was before this committee. I am delighted to report, as everyone here knows, that a few days after that, and not in response to this, I know that this policy had been under consideration for a very long time at the State Department, Harold Koh, the Legal Adviser to State, delivered a speech in which he addressed these issues. And I am both delighted that the issues have been raised publicly by the administration, by its most senior international lawyer, and as well, I am myself very happy with the contents. I am in the, I guess I would say, unaccustomed position of attempting somewhat to channel Legal Adviser Koh on this occasion. He said in those remarks that there were four objections that he wanted to address in relation to targeted killing. One was that the very act of targeting a particular leader was itself a violation of the laws of war. And quite strikingly, in addressing that objection, he went to state practice. He didn t cite directly to law as such, he didn t cite court cases. He cited American state practice in the Second World War as a basis for stating that this was not contrary to international law, which I thought was actually quite striking in referring to the actual ways in which states behave as a source of law in these areas. Second, he addressed the question of, is there something just really not OK, morally wrong or reprehensible or legally wrong about the use of high advance weaponry drones. And he said no, there is nothing particular about weapons systems, except in a very few cases of indiscriminateness, that will outlaw them. And being high-tech, and in fact, this is all good in this area, because it allows discrimination in targeting that is otherwise not there. Third, he addressed the question of whether this is extra-judicial execution, and hence in violation of international treaties and covenants and so on, and whether in particular there is an obligation VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

12 8 to provide process or warning to people before targeting them where they have been identified by the United States as targets. And here he introduced something that I think is of deep importance as a statement of U.S. policy. Because he very clearly distinguished between saying it is lawful to do this, both in an armed conflict governed by the technical body of the laws of war, and it is also lawful to do so when the United States is engaged in legitimate international self-defense as a category of the use of force separate from armed conflict, specifically as a technical matter. And he defended targeting without warning in each of those cases treated separately. And then finally, and I think of great importance within the United States, the United States has had a long ban on assassination within its domestic rules. But it has never defined what it means by that. And he was very careful to reaffirm something that was said by his predecessor in 1989, Abraham Sofaer, and said that this is not assassination within the meaning of U.S. law. Now, I support all of those, and in particular the distinction that was drawn between armed conflict and legitimate self-defense as a category, and would reiterate what I raised in the last hearing, which is, this discussion is not really about the use of drones on the battlefield in the traditional, ordinary sense as used by the U.S. military. It is for them a weapons platform like any other, and all the considerations of collateral damage and all the usual stuff that goes into targeting applies. But they don t really think of it any differently, as one can see from the last hearing. The question here is, who and where. And it s the question, first of all, of whether it is lawful to target off of what one might consider a traditional battlefield, and whether there is in fact any legal distinction between going after your enemies, wherever they happen to be, on the one hand, and the CIA attacking people outside of traditional zones. So let me bring this to a close by saying that the discussion that we are having is really the discussion about the lawfulness of the CIA using these kinds of weapons outside of the traditional battlefields. And that if for any reason that is considered not to be OK, that is considered to be criminal, that is considered to be a war crime, somebody had better tell the CIA about it, somebody had better tell the President about it, somebody had better tell Vice President Biden about it. Because they are all enthusiastic participants in this. So it is a perfectly legitimate question to raise whether this is OK and lawful and the rest. But whatever the answer is, we should not leave the people who are carrying this out in legal uncertainty as to what that answer is. Thank you, Mr. Chairman. [The prepared statement of Mr. Anderson follows:] VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

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22 18 Mr. TIERNEY. Thank you, Mr. Anderson. Mr. TIERNEY. Ms. O Connell. STATEMENT OF MARY ELLEN O CONNELL Ms. O CONNELL. Thank you very much, Mr. Chairman, for the invitation to speak with you today about the law governing the use of weaponized unmanned aerial vehicles, also known as combat drones. I should mention that I have been a professional military educator for the Department of Defense, and I will be drawing on that experience and the learning I gained in that context in making three points for you today. First, combat drones are battlefield weapons. Second, the battlefield is a real place, where fighting occurs between organized armed groups. Battlefields and armed conflicts are not fictions created by lawyers. Third, permissible battlefield use of combat drone is governed by law regulating who may operate them, against whom they may be operated and how they may be used. Turning to my first point, combat drones are a battlefield weapon. They launch missiles and drop bombs, a significant kinetic force. Such weapons are permitted on the battlefield, but we do not permit our police to have missiles or bombs in their arsenals. They are not allowed to use that kind of firepower in carrying out law enforcement activities. Today in Afghanistan, our armed forces are involved in an armed conflict. They are facing an organized enemy capable of holding territory. In the coming battle for Kandahar, they will be permitted to use drones. And indeed, I would suggest to you that the use of drones in that context would be preferable to the use of airplanes dropping bombs from high altitudes. The drone, of course, as you learned at your last hearing, has a video camera capability. It can send back very detailed information, including on the location of civilians in a combat zone and with regard to the details of civilian objects. In that way, the pilot of the drone, or the operator from a long distance can make much more precise targeting decisions than can be made from an airplane. General McChrystal has wisely called for strict avoidance of civilian casualties in our counterinsurgency war in Afghanistan. And I believe that drone can help us accomplish this. But outside of a war or an armed conflict, everyone is a civilian when it comes to the use of lethal force. The combatant s privilege to kill on the battlefield without being charged with a crime applies inside an armed conflict and not outside, which leads to my second point. Armed conflict is a real situation that we know by the facts of fighting. Armed conflicts exist where organized armed fighting occurs, where there are intense hostilities. Armed conflicts cannot be created on paper, in a legal memo, that then translates into the right to kill as if you were on a real battlefield. The law I am explaining is derived from the Just War Doctrine. That doctrine has held that killing is only justifiable in situations of necessity. Battlefields where intense fighting is occurring is a per se situation of necessity. Off the battlefield, we give the police the right to use lethal force only in situations of immediate necessity to save a life. This VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

23 19 rule means police do not have bombs and missiles in their arsenals, they have handguns and rifles. Even in places like Yemen and Pakistan, where there is armed conflict going on, the United States would only have the right to use combat drones in the armed conflicts that those governments are participating in, and not in some rogue operation of our own that has nothing to do with what those governments are trying to accomplish. We recognize neither of those states as failed states; indeed, we are very much dependent on both Yemen and Pakistan having strong governments, strong identities and being stable states. In order to build that stability in both countries, we need to respect their sovereign rights as defined by international law. That means that we do not have the right to use military force except with their expressed permission and in pursuit of their aims. Even when we are invited to join in an armed conflict, as we have been in Afghanistan, it is that invitation that makes it lawful for us to participate in that armed conflict. We have certain very strict rules in terms of how we may operate combat drones. First and foremost, only a combatant, lawful combatant, may carry out the use of killing with combat drones. The CIA and civilian contractors have no right to do so. They do not wear uniforms, and they are not in the chain of command. Most importantly, they are not trained in the law of armed conflict. That is why we have reason to fear that CIA-directed combat operations are having disproportionate impacts on civilians, and they are pursuing their use of lethal force not in a way aimed at accomplishing the military objective, which in this case is to stop terrorists. We know from empirical data, and this is my final point, that the use of major military force in counterterrorism operations has been counterproductive. A Just War doctrine teaches that we should always and only use force when we can accomplish more good than harm. And that is not the case with the use of drones in places like Pakistan, Yemen and Somalia. Thank you. [The prepared statement of Ms. O Connell follows:] VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

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30 26 Mr. TIERNEY. Thank you. Mr. Glazier. STATEMENT OF DAVID GLAZIER Mr. GLAZIER. Thank you, Mr. Chairman. I would like to begin very quickly by thanking the chairman and members of the committee for holding this hearing. Because so much of the discussion after 9/11 has really been political. And as a citizen and a law professor, I am very appreciative of the fact that the committee really is interested in exploring the legal issues. I think that there is no doubt about the fact that we are in an armed conflict. First of all, as a matter of international law, the world community has recognized 9/11 as an armed attack. And more importantly, as a matter of our domestic law, Congress has chosen to exercise its constitutional authority to authorize the use of military force against the organizations responsible for the 9/11 attack and any organizations that harbored them. So it seems to me that as a matter of law, there is no dispute that we are in an armed conflict with al Qaeda and with the Taliban. And that therefore allows the United States to call upon the full scope of authority which is provided by the law of war. Many people perceive that there is sort of a false dichotomy between compliance with stringent rules and the law of war and military and political success. The thing I would like to emphasize up front is that I really feel that this is a false dichotomy. I think we fail to recognize oftentimes how much the law of war was developed by warriors, and how much military necessity and the ability to accomplish what a nation needs to do to successfully prosecute an armed conflict is already addressed within that body of law. I also want to suggest that the fact that many of the instruments which comprise the law of war are dated is not necessarily a major issue when it comes to dealing with modern technology like drones, because much of the law of war is expressed in the form of general rule and guiding principles, which can readily be applied to new technical developments that weren t anticipated at the time the war is developed. So principles like necessity, which Professor O Connell has mentioned, requirements to discriminate in targeting on proportionality, these rule are easy to apply to modern technology, just as easy as they are to apply to the technology that existed at the time. There certainly is nothing with the law that prohibits the use of drones. In fact, it is the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past, actually suggests that they are preferable to many older weapons. Now, there certainly are issues with existing law that can come from bad choices made in their deployment. We know, for example, that some of the early attacks, which resulted in larger numbers of casualties, have caused significant fallout. But again, that is an area in which compliance with the law of war, which requires careful discrimination between military and civilian tactics, suggests that in fact following the rules enhances our ability to prevail in the conflict. VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

31 27 There are real issues, though, I think, with who can employ the weapons. That is something that I find very, very problematic. The law of war has rules as far as who can be combatants, who enjoy immunity from domestic laws for engaging in armed conflict. So for example, I think there is little doubt about the legality of the Air Force and National Guard use of drones, which is an ongoing basis. But it is interesting that the government is using CIA personnel who clearly are not lawful combatants under the rules specified in the law of war. Now, we law of war scholars debate what is the legal significance of that. I think, though, that the majority view is that if you are not a privileged combatant, you simply don t have immunity from domestic law for participating in hostilities. And so the reality is that it seems to me, for example, that any CIA personnel who participate in this armed conflict run the risk of being prosecuted under the national laws of the place where they take place. On the other hand, though, today our government is in the process of trying to hold some of our adversaries criminally accountable at Guantanamo under a legal theory that being a non-privileged belligerent and engaging in war constitutes a war crime. So if that is in fact our government s position, then our sense would be that the CIA personnel participating in this program are committing war crimes, and the individuals who have directed them to participate are committing war crimes. So when we asked the government to sort of address these larger issues, it seems to me that one of the things we need to call upon them to do is to clarify the U.S. Government s view on this aspect. Because either we are wrong at Guantanamo or we are seriously wrong in using the CIA to participate in the program. There are also issues about where the conflicts are taking place, which Professor O Connell addressed. I think we will probably have some spirited discussion and disagreement on those issues during the questions. Thank you. [The prepared statement of Mr. Glazier follows:] VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

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38 34 Mr. TIERNEY. Thank you. Mr. Banks. STATEMENT OF WILLIAM C. BANKS Mr. BANKS. Thank you, Mr. Chairman, Representative Flake, members of the committee. Thank you for the invitation to speak with you today. In these brief oral remarks, I am going to focus indeed on the laws of the United States that govern the CIA s involvement in unmanned targeting. The decision to target specific individuals with lethal force after September 11th was neither unprecedented nor surprising. In appropriate circumstances, the United States has engaged in targeted killing at least since the border war with the Mexican bandits in In a time of war, subjecting individual combatants to lethal force has been a permitted and lawful instrument of waging war successfully. But new elements of targeted killing policy emerged in recent years in response to terrorism and to the threats against the United States. Among the new elements, of course, is the significant role for the CIA in controlling pilot-less drones to carry out the targeted killing policy. It is important to emphasize that regardless of the policy efficacy of the drone strikes, it is never sufficient under the rule of law that a government policy be wise. It must also be supported by law, not just an absence of law violations, but positive legal authority. Indeed, where the subject is intentional, premeditated killing by the government, the need for clearly understood legal authority is paramount. After all, legal authority is what distinguishes murder from lawful policy. The National Security Act of 1947 authorized the CIA to perform such other functions and duties related to intelligence affecting the national security as the President or National Security Council may direct. Although the original grant of authority in 1947 likely did not contemplate targeted killing, the 1947 act was designed as dynamic authority to be shaped by practice and by necessity. By the 1970 s, fitfully, the practice came to include targeted killing. After the Church Committee learned of and disapproved of CIA assassination plots in the mid-1970 s, President Ford issued an executive order prohibiting CIA involvement in assassination, notably not restricted targeted killing, something we will discuss later. And Congress enacted intelligence oversight legislation that, as amended, continues to require reporting to Congress by the President of significant anticipated intelligence operations. In the weeks after 9/11, President Bush signed an intelligence finding giving the CIA broad authority to pursue terrorism around the world. By statute, the finding must accompany any covert operation approved by the President, including those that permit targeted killing. In this particular classified finding, the President reportedly delegated targeting and operational authority to senior civilian and military officials. The 2001 finding was apparently modified in 2006 by President Bush to broaden the class of potential VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

39 35 targets beyond Osama bin Laden and his close circle and also to extend the boundaries of that authorization beyond Afghanistan. In explicitly permitting the targeting of an individual with lethal force, the finding also more narrowly focuses the potential to inflict violence. Ever since the Hughes Ryan Amendment of 1974 Congress has authorized CIA covert operations if findings are prepared, delivered to select Members of Congress before the operation that is described, or in a timely fashion thereafter. So long as the intelligence committees are kept fully and currently informed, the intelligence laws permit the President broad discretion to utilize the Nation s intelligence agencies to carry out national security operations, implicitly including targeted killing. Such an operation would follow intelligence law as an operation in foreign countries other than activities solely intended for obtaining necessary intelligence unless it would be conducted pursuant to statutory authority. To some, it seemed that the 2001 finding ran counter to the longstanding ban on political assassination. Enshrined in that executive order first issued by President Ford in 1976, the directive forbids political assassination but does not define the term. Just what does distinguish lawful targeted killing from unlawful political assassination? The answer turns upon which legal framework applies, as we will discuss further here this morning. During war, whether authorized by Congress or fought defensively by the President on the basis of his authority, targeted killing of individuals combatants is lawful, although killing by treacherous means through the use of deceit or trickery is not. In peace time, any extra-judicial killing by a government agent is lawful only if taken in self-defense or in defense of others. But what rules apply when the United States is engaged in an non-traditional war on terrorism or a war against al Qaeda? The evolving customary law of anticipatory self-defense and intelligence legislation regulating the activities of the CIA supply adequate, albeit not well articulated or understood legal authority for these drone strikes. Thank you very much. [The prepared statement of Mr. Banks follows:] VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

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53 49 Mr. TIERNEY. Thank you all. It certainly gives us some food for thought. I am going to begin the questions and we will go around. I suspect more than one round here. So, if I am listening to all of you, you all sort of agree that the who and the where are the principal issues here, who is using the drones and where that use is. I will watch your heads bob or go back and forth, or whatever, and stop if somebody disagrees with that. So if it is on the battlefield, and the military is doing it, fine. Nobody has a problem with that. If it is on the battlefield and the CIA or some other civilian organization is doing it, some people have a question, or not? Some people do have a question. Ms. O Connell. So even if we are on the battlefield, we are in Afghanistan, for instance, engaged with who the military may think is al Qaeda or the people that they are in contest with, but they have the CIA doing the targeting of drones, or whatever, what is the issue there? Ms. O CONNELL. No, under international law of armed conflict, the CIA does not have the right to carry out battlefield killings. Professor Glazier and Professor Anderson both agreed with me on that, that the international law regulating the battlefield does not give the combatants privilege to kill without warning and not face prosecution to persons who are not members of the regular armed forces of a country, who are not under military discipline in a chain of command and not trained in the law of armed conflict. And those important characteristics, which as Professor Glazier said, we are holding people at Guantanamo because they didn t meet those characteristics, those are failures, those are deficits on the part of the CIA. They simply have no right. We are already facing, 17 of our CIA agents are under indictment in Italy for attempting to kidnap someone off the streets of Milan, an alleged person with ties to al Qaeda. If that is what the rest of the world thinks is the right result with regard to kidnapping, you can imagine how the rest of the world views killing persons by the CIA. It is just a clear violation of international law. Mr. TIERNEY. Mr. Anderson, you wanted to explore that? Mr. ANDERSON. I would disagree in part with that. But I guess in terms of the framing issue that you raise, there are two issues implied. One is, what is the ability, if any, of the CIA lawfully to participate in something that is an armed conflict when they are civilians. It is more complicated, I think, than Professor O Connell suggests, in the sense that their participation may or may not involve the combatant s privilege, but does not make it per se unlawful under international law necessarily. That is, there are questions about whether they are taking direct participation in hostilities. There are questions about their status as civilians in the conflict zone. But then beyond that, there is a question as to where does this armed conflict run? Does it run outside Afghanistan? Does it run into Mr. TIERNEY. That was going to be the next extension of this on that. VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

54 50 Mr. ANDERSON. But that will be the question for the CIA. Then there are two different questions if one accepts that these are two different situations geographically. Mr. TIERNEY. Let me take this a little bit further. Suppose now we are talking about the situation in Yemen with Anwar al-awlaki. So I guess you would have to accept the fact or make the argument that he is associated with al Qaeda, or somehow an al Qaeda person, or you have a problem right off the get-go, if he is not associated with somebody that you can make an argument that you are in a conflict with, you have an issue. Is it OK for our military at that point in time, as this is an extension of our conflict, to use a drone and target this individual? Is that acceptable under international law? Ms. O CONNELL. No. That was a point of my remarks as well. Mr. TIERNEY. The battlefield issue? Ms. O CONNELL. Yes. In Yemen, this particular case again, in 2002, when we carried out our first drone strike in Yemen and killed named individuals, the Air Force refused to carry out that operation. They were the ones operating drones at that time. And the CIA was willing to do it. The Air Force said, we don t have any right to kill in a situation in which we are not involved in a battle, in an armed conflict. And the Air Force was right, that was the correct legal intelligence. Professor Glazier said that he agreed with this lawyer-created concept that we are in a worldwide self-defensive armed conflict against al Qaeda and the Taliban and others. And he said that this is supported by the world. In fact, after September 11th, the United Nations Security Council did find that the attacks gave rise to the right of the United States to engage in self-defense. But we engaged in the self-defense that the law of state responsibility gave us a right to engage in, and that was in Afghanistan. That was the state responsible for carrying out the attacks, for supporting al Qaeda in being able to carry out those attacks. So we lawfully took the battle to Afghanistan. We engaged in lawful self-defense on the territory of the state where we had been attacked. But the rest of the world does not recognize the right to carry out attacks of a battlefield all over the world, such as in Yemen and in parts of Pakistan and in other places. There are many other countries that have been attacked by al Qaeda: Great Britain, Indonesia, Spain, Kenya. None of them consider themselves to be in an armed conflict all over the world against al Qaeda. They consider themselves to be involved in counterterrorism operations. And using the methods that they have used, they have been very successful. The British have said, you are never in an armed conflict with terrorists. They are minor criminals, you do not elevate them to combatants. And President Ronald Reagan said the same. I agree with President Reagan, you cannot have an armed conflict with terrorists. They are mere combatants, they are not warriors and they should never be elevated to the level of warriors. Our warriors are in an armed conflict in Afghanistan. We should be using counterterrorism law enforcement techniques in other countries. We just don t have the right to bomb people where there is no armed conflict. VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE

55 51 Mr. TIERNEY. This is where the 5-minute rule is particularly limiting. Ms. O CONNELL. I am sorry. Mr. TIERNEY. No, it is for me, not for you. Mr. Flake. Mr. FLAKE. Let me expand on that a bit. When we talk about Yemen, how many attacks, Ms. O Connell, do we know of that have been public, have we used in Yemen, as far as drone attacks? Ms. O CONNELL. I know of only three or four, one carried out in the Bush administration and the others in the Obama administration. The Obama administration has clearly stepped up the policy of using drones in non-armed conflict situations. Mr. FLAKE. You were drawing some kind of distinction earlier with regard to whether or not we have permission from those states. But it seems from what you are saying, that shouldn t even make a difference. Ms. O CONNELL. There is a very key and often overlooked distinction. The invitation has to be to participate in the armed conflict that the government of the country is participating in. So Yemen right now is facing insurgencies in the north and the south. It has two rather minor insurgencies going on right now. They are getting some help from Saudi Arabia, they have requested that help with regard to one of these insurgencies. If they had asked us, the United States, to be also involved, we could use military force there, on their invitation, in their armed conflict. But what we have done, and in 2002, the case we know the most about, this attack was not part of any armed conflict that the Yemeni authorities were involved in. It was six individuals in a vehicle in a remote area, and we killed all six persons, including a U.S. citizen. That is not an armed conflict that Yemen is engaged in. So even having consent in that case is not sufficient. Mr. FLAKE. Mr. Banks, you mentioned the requirement that Congress be informed under the National Security Act. Is there any evidence that Congress has not been informed sufficiently with regard to these activities? Mr. BANKS. Not to my knowledge, Representative Flake. It is of course a very broad grant of authority. And the reporting requirement is only ambiguously stated, but fully and currently informed. So that language would suggest that Congress, the intelligence committees, should know the details about those operations. Mr. FLAKE. I take it you disagree, then, with the position that we can t or shouldn t be involved in targeted attacks in Pakistan or Yemen? Mr. BANKS. Whether we should as a matter of policy is not my expertise. I think that the law may permit that. I don t think that the paradigm of armed conflict is the only body of law that may apply in that setting. I think the law of self-defense, part of customary international law, as well as the laws of the United States, constitutional powers of the President, the authorities that you, the Congress, have given to the President through the authorization for the use of military force, along with the intelligence laws that I made reference to in my remarks, I think all have a role to play in deciding what authority the United States has to operate in those non-traditional battlefield environments. VerDate 11-MAY :27 May 09, 2011 Jkt PO Frm Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\64922.TXT KATIE PsN: KATIE